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The Promise of Hybrid Courts

Published online by Cambridge University Press:  27 February 2017

Laura A. Dickinson
Laura A. Dickinson*
Affiliation:
University of Connecticut Law School; U.S. Department of State
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American Journal of International Law , Volume 97 , Issue 2 , April 2003 , pp. 295 - 310
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Copyright © American Society of International Law 2003

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References

1 See generally Ratner, Steven R. & Abrams, Jason, Accountability for Human Rights Atrocities in International Law: Beyond the Nuremberg Legacy (2d ed. 2001)Google Scholar; Avenues to Accountability: National and International Responses to Atrocities (Jane Stromsethed. forthcoming 2003) [hereinafter Avenuesto Accountability]; Boraine, Alex, A Country Unmasked (2000)Google Scholar; Hayner, Priscilla, Unspeakable Truths (2001)Google Scholar; Minow, Martha, Between Vengeance and Forgiveness: Facing History After Genocide and Mass Violence (1998)Google Scholar; Teitel, Ruti G., Transitional Justice (2000)Google Scholar; Transitional Justice: How Emerging Democracies Reckon with Former Regimes (Neil J. Kritz, ed. 1995).

2 See Mydans, Seth, U.N. and Cambodia Reach an Accord for Khmer Rouge Trial, N.Y. Times, Mar. 18, 2003, at A5 Google Scholar.

3 See Lewis, Neil A., Tribunals Nearly Ready for Afghanistan Prisoners, N.Y. Times, Apr. 8, 2003, at B1 Google Scholar (reporting plans to create “civilian tribunals conducted by Iraqi lawyers and judges with the help of the United States to prosecute crimes against humanity committed over the past 20 years, including charges of genocide against the Kurds”).

4 At a panel on hybrid courts that was part of the 2002 International Law Association Annual Conference, David Scheffer, former U.S. Ambassador-at-Large for War Crimes Issues, and Hansjörg Strohmeyer, Director of the Office of Humanitarian Affairs at the United Nations, both rejected the notion that such courts might be touted as a model for the future despite the fact that Scheffer had helped establish the special court for Sierra Leone and was deeply’involved in the efforts to create a hybrid court in Cambodia, and Strohmeyer had worked to establish hybrid courts in Kosovo and East Timor as an assistant legal advisor to the UN transitional administrators there.

5 See, e.g., U.N. Action on Sierra Leone Court Welcomed But “Mixed” Tribunal Has Shortcomings, Press Release, Human Rights Watch (Aug. 14, 2000)Google Scholar (warning that Sierra Leone authorities could manipulate the hybrid court, “leading to biased prosecutions and inadequate protections for persons standing trial before the tribunal”).

6 See, e.g., Pierre-Richard, Prosper, U.S. Ambassador-at-Large for War Crimes Issues, Opening Statement Before the Senate Commission on Governmental Affairs, April 10, 2003, available at <http://www.state.gov/s/wci/rm/19556.htm>>Google Scholar. Although the administration has not explicidy ruled out a hybrid court, officials to date appear to be publicly supporting a domestic, rather than a hybrid, process. See Neuffer, Elizabeth, Plan Concerning Abuse Cases Gets Mixed Response, Boston Globe, Apr. 9, 2003 Google Scholar.

7 For an overview of efforts to establish the rule of law in postconflict Kosovo, see Betts, Wendy S., Carlson, Scott N., & Gisvold, Gregory, The Post-Conflict Transitional Administration of Kosovo and the Lessons Learned in Efforts to Establish a Judiciary and the Rule of Law, 22 Mich. J. Int’l L. 371 (2001)Google Scholar; Hansjörg, Strohmeyer, Making Multilateral Interventions Work: the UN and the Creation of Transitional Justice Systems in Kosovo and East Timor, Fletcher For. World Aff. (2001)Google Scholar [hereinafter Strohmeyer, Multilateral Interventions]; Hansjörg, Strohmeyer, Collapse and Reconstruction of a Judicial System: The United Nations Missions in Kosovo and East Timor, 95 AJIL 46 (2001)Google Scholar [hereinafter Strohmeyer, Collapse].

8 Betts, supra note 7, at 376–77.

9 Strohmeyer, Collapse, supra note 7, at 49–50, 53.

10 Id.

11 See Carla, Del Ponte, Prosecutor of the ICTY, “Statement on the Investigation and Prosecution of Crimes Committedin Kosovo,” The Hague (Sept. 29, 1999)Google Scholar.

12 See Strohmeyer, Collapse, supra note 7, at 49. When UNMIK issued a regulation allowing for longer pretrial detentionof suspects, the Legal System Monitoring Section (LMS) of the Organisation for Security and Co-operationin Europe (OSCE) concluded that the new regulation was a “clear breach” of the European Convention on Human Rights (ECHR) and the International Covenant on Civil and Political Rights (ICCPR). OSCE LMS, Kosovo: Report No. 6: Extension of Time Limits and the Rights of Detainees: The Unlawfulness of Regulation 1999/26 (April 29, 2000).

13 Betts, supra note 7, at 381.

14 UNMIK Resolution 1999/1.

15 Strohmeyer, Multilateral Transitions, supra note 7, at 112–13.

16 Id.

17 UNMIK Resolution 1999/24 and UNMIK Resolution 1999/25.

18 OSCE, Department of Human Rights and Rule of Law, Legal Systems Monitoring Section, Kosovo’s War CrimesTrials: A Review, September 2002, available at <http://www.osce.org/kosovo/documents/reports/justice/> [hereinafterKosovo’s War Crimes Trials].

19 Id.

20 UNMIK Regulation 2000/64 (Dec. 15, 2000).

21 Kosovo’s War Crimes Trials, supra note 18.

22 Id.

23 See SC Res. 1272 (Oct. 25, 1999).

24 See Strohmeyer, Collapse, supra note 7, at 50.

25 See id. at 57.

26 See id.

27 For a discussion of the interactions among various accountability mechanisms in East Timor and Indonesia, see Dickinson, Laura A., The Dance of Complementarity: Relationships Among Domestic, International, and Transnational Accountability Mechanisms in East Timor and Indonesia, in Avenues to Accountability, supra note 1 Google Scholar.

28 See Section 10 of UNTAET Regulation No. 2000/11 on the Organization of Courts in East Timor, available at <http://www.un.org/peace/etimor/untaetR/Reg11.pdf> (last visited Oct. 21, 2002) [hereinafter Regulation No.2000/11], which gives to the Dili District Court exclusive jurisdiction over the most serious crimes, including genocide, war crimes, and crimes against humanity. Regulation No. 2000/11 is further supported by UNTAET Regulation No. 2000/15 on the Establishment of Panels with Exclusivejurisdiction for Serious Crimes, promulgated onJune 6, 2000, available at <http://www.un.org/peace/etimor/untaetR/Reg0015.pdf> (last visited Aug. 27, 2002). For an analysis of these provisions and the hybrid courts they establish, see Linton, Suzannah, Rising from the Ashes:The Creation of a Viable Criminal Justice System inEast Timor, 25 Melb. U. L. Rev. 122, 145–73 (2001)Google Scholar; Strohmeyer, Multilateral Interventions and Collapse, supra note 7; Beauvais, Joel C., Note, Benevolent Despotism: A Critique of U. N. State-Building in East Timor, 33 N.Y.U. J. Int’l L. & Pol. 1101 (2001)Google Scholar; see also UNTAET Press Office, Fact Sheet 7, Justice and Serious Crimes (Dec. 2001), available at <http://www.un.org/peace/etimor/fact/fs7.pdf>>Google Scholar (last visited Oct. 21, 2002).

29 Regulation No. 2000/11, supra note 28.

30 See, e.g., Strohmeyer, Multilateral Interventions, supra note 7, at 118; Sharifah, Al-Attas, Picking Up the Pieces, The New Straits Times, Jan. 21, 2002, at 8 Google Scholar (interview with Malaysian prosecutor who works for the Serious Crimes Unit Prosecution office; notes that other prosecutors come from Brazil, Burundi, Canada, England, Sri Lanka, and the United States); see also UNTAET Daily Press Briefing (Jan. 9, 2002), available at <http://www.un.org/peace/etimor/DB/db090102.htm> (last visited Oct. 21, 2002) (announcing arrival of Siri Frigaard, from Norway, to take theposition as the new chief prosecutor for the serious crimes unit).

31 Judicial System Monitoring Program, Summary of Serious Crimes Cases, available at <http://www.jsmp.minihub.org/Trialsnew/htm>.

32 For an overview of the short falls of the special panels, caused in part by scarce resources, see Dicker, Richard, Jendrzejczyk, Mike & Weschler, Joanna, East Timor: Special Panels for Serious Crimes, Human Rights Watch, Aug, 6, 2002, available at <http://www.hrw.org/press/2002/08/etimor-ltr0806.htm>>Google Scholar (last visited Dec. 26, 2002); see also Cohen, David, Seeking Justice on the Cheap: Is the East Timor Tribunal Really a Model for the Future? Asia Pacific Issues, available at <http://www.ewc.hawaii.edu/stored/pdfs/api061.pdf> (last visited Dec. 26, 2002)Google Scholar.

33 For an account of the conflict and efforts to establish postconflict mechanisms of accountability and reconciliation, see Haines, Avril D., Accountability in Sierra Leone: The Role of the Special Court, in Avenues to Accountability, supra note 1 Google Scholar; see also U.S. Department of State, Sierra Leone, 2001 Country Reports on Human Rights Practices, March 4, 2002, available at <http://www.state.gov/g/drl/rls/hrrpt/2001/af/8402.htm> [hereinafter Sierra Leone2001 Country Report].

34 See Crossette, Barbara, U. N, to Establish a War Crimes Panel to Hear Sierra Leone Atrocity Cases, N.Y. Times, Aug. 15, 2000, at A6 Google Scholar (describing fears that Foday Sankoh would be able “to bargain for amnesty if the country’s weakenedjudicial system has control of the tribunal”).

35 See Holloway, Robert, Security Council Approves International Court for Sierra Leone, Agence France-Presse, Aug. 14, 2000 Google Scholar (describing Kabbah’s concerns about domestic prosecutions).

36 Sierra Leone 2001 Country Report, supra note 33, at §4.

37 Report of the Secretary-General on the Establishment of a Special Court for Sierra Leone, UN SCOR, UN Doc.S/2000/915 (2000) [hereinafter Report of the Secretary-General].

38 The court consists of two trial chambers and an appeals chamber, as well as a prosecutor’s office and a registry.Each trial chamber is composed of three judges, two international (to be appointed by the Secretary-General) andone domestic (to be appointed by the government of Sierra Leone). The appellate chamber is composed of five judges, three international and two domestic, and while the Secretary-General is to appoint the prosecutor, the governmentof Sierra Leone is to appoint a deputy. Other court staff is also to include both international and domestic personnel. See generally Agreement Between the United Nations and the Government of Sierra Leone on the Establishment of a Special Court for Sierra Leone, January 16, 2002, Appendix II, UN Doc. S/2002/246, [hereinafter Special Court Agreement]; Statute of the Special Court for Sierra Leone, Appendix II, Attachment, UN Doc. S/2002/246 [hereinafter Statute of the Special Court]; Report of the Secretary-General, supra note 37. For an overview of the court’s central features, see Scharf, Michael, The Special Court for Sierra Leone, ASIL Insights, October 2000, available at <http://www.asil.org/insights/insigh53.htm.at 3>Google Scholar.

39 Special Court Agreement, supra note 38, at Art. 2; Statute of the Special Court, supra note 38, at Art. 12.

40 Statute of the Special Court, supra note 38, at Art. 1. Specifically, the court may hear cases concerning crimes against humanity, violations of common Article 3 of the Geneva Conventions, and other serious violations of international humanitarian law, including intentional attacks on civilians or humanitarian personnel, and the abductionand forced recruitment of children under the age of 15. Id. at Arts. 2–4. At the same time, the court has jurisdiction over certain domestic crimes, including offenses related to the abuse of girls, and arson. Id. at Art. 5. Becausethere was no evidence that the mass killing in Sierra Leone was at any time perpetrated against an identifiablenational, ethnic, racial, or religious group with the intent to annihilate the group as such, the Special Court does not have jurisdiction over the crime of genocide. See Report of the Secretary-General, supra note 37, at 3.

41 Statute of the Special Court, supra note 38, at Art. 20.

42 War Court Judges for Sierra Leone Take Their Oaths, N.Y. Times, Dec. 3, 2002, at A8 Google Scholar.

43 Obviously, these two inquiries may be similar. For example, the perceived legitimacy of a judidical body mightbe related to the transparency or democratic accountability of the body, two factors that might also be relevant for evaluating the legitimacy of that body as a matter of political theory.

44 See Strohmeyer, Collapse, supra note 7, at 48–53.

45 Sierra Leone 2001 Country Report, supra note 33.

46 See Organisation for Security and Co-operation in Europe Mission in Kosovo, Department of Human Rightsand the Rule of Law, Legal Systems Monitoring Section, Report 9—On the Administration of Justice, March 2002, at 5 [hereinafter March 2002 OSCE Report].

47 See McKay, Andrew, Judicial Affairs: Delivering Effective Law and Order, Focus Kosovo, Oct. 2001, at <http://www.unmikonline.org/pub/focuskos/oct01/focusklaw1.htm>Google Scholar (last visited Oct. 21, 2002); Multi-Ethnic Justice, Focus Kosovo, Dec. 2001, at <http://www.unmikonline.org/pub/focuskos/dec01/focuskchron.htm>>Google Scholar (last visited Oct. 21, 2001).

48 Detentions: A Tale of Two Prison Groups, Focus Kosovo, Feb. 2002, at <http://www.unmikonline.org/pub/focuskos/feb02/focusklaw1.htm>>Google Scholar (last visited Oct. 21, 2002).

49 See Strohmeyer, Collapse, supra note 7, at 50–53.

50 See Beauvais, supra note 28, at 1119–20.

51 Most of the atrocities were committed by pro-autonomy (anti-independence) militias, backed by Indonesian authorities. See Strohmeyer, Collapse, supra note 7, at 46.

52 As quoted in Vo, Minh T., War-Tom Sierra Leone Gets Help from the West, Christian Sci. Mon., Aug. 10, 2000, available at <http://www.csmonitor.com/durable/2000/08/10/fp7s2-csm.shtml>Google Scholar.

53 see The Human Rights Center and the International Human Rights Law Clinic, University of California, Berkeley, & the Centre for Human Rights, University of Sarajevo, Justice, Accountability, and Social Reconstruction: An InterviewStudy of Bosnian Judges and Prosecutors, 18 Berkeley J. Int’l L. 102, 136–40 (2000)Google Scholar.

54 See id. at 144–47.

55 See Jordan, Michael J., Hopes Dim for International Tribunal in Thoenes Case, Christian Sci. Monitor, June 25, 2002, at 7 Google Scholar.

56 See, e.g., Vo, supra note 52.

57 See Strohmeyer, Collapse, supra note 7, at 49–51.

58 See id.

59 See id.

60 See id. at 50.

61 See Linton, supra note 28, at 133–34.

62 See Human Rights Watch, World Report 2003, Sierra Leone, available at <http://www.hrw.org/wr2k3/africal0.html>.

63 See id.

64 See, e.g., Anne-Marie, Slaughter, Judicial Globalization, 40 Va.J. Int’l L. 1103 (2000)Google Scholar.

65 See id.

66 See id.

67 See Harold, Hongju Koh, Why Do Nations Obey International Law?, 106 Yale L.J. 2599, 2645–46 (1997)Google Scholar.

68 Murphy, Sean D., Progress and Jurisprudence of the International Criminal Tribunal for the Former Yugoslavia, 93 AJIL 57, 95 (1999)Google Scholar.

69 In East Timor, for example, the Serious Crimes Unit tried its first cases as murder cases, rather than the morecomplex crimes against humanity that might have been charged. See, e.g., Linton, Suzannah, Prosecuting Atrocities at the District Court of Dili, 2 Melbourne j. Int’l L. 415, 425 (2001)Google Scholar; see also Human Rights Watch, Trial Welcome butJus tice Still Elusive in East Timor Jan. 26, 2001, available at <http://www.hrw.org/press/2001/01/easttimortrial.htm>.

70 Kosovo’s War Crimes Trials, supra note 18, at 34–36.

71 id

72 id at 12–27.

73 See, e.g., International Crisis Group, Indonesia: Implications of the Timor Trials, May 8, 2002, available at <http://www.crisisweb.org/projects/showreport.cfm?reportid=643>>Google Scholar.

74 See Beauvais, supra note 28 (describing the benefits of this consultation process in East Timor).

75 March 2002 OSCE Report, supra note 46, at 6.

76 See id. at 5–6.

77 See id.

78 See Linton, Rising From the Ashes, supra note 28, at 150.

79 See March 2002 OSCE Report, supra note 46, at 6. Indeed, efforts to establish a hybrid court in Cambodiastalled due to an inability to agree about the balance of international and local control. See Mydans, Seth, U. N. EndsCambodia Talks on Trials for Khmer Rouge, N.Y. Times, Feb. 9, 2002, at A4 Google Scholar. An agreement to establish a hybrid courthas now been reached. See Mydans, supra note 2.

80 See Beauvais, supra note 28, at 1157–59.

81 See, e.g., id. at 1160; Linton, Rising From the Ashes, supra note 28, at 149; Kosovo’s War Crimes Trials, supra note 18.

82 See Slaughter, supra note 64.

83 Kosovo’s War Crimes Trials, supra note 18, at 46–47.

84 See Dicker et al., supra note 32.

85 In this respect, hybrid courts can be seen as a potentially effective form of transnational legal process. See Koh, supra note 66, at 2602 (defining “transnational legal process” as “the complex process of institutional interaction whereby global norms are not just debated and interpreted, but ultimately internalized by domestic legal systems”).

86 See supra notes 4–5 and accompanying text.

87 Rome Statute of the International Criminal Court, United Nations Diplomatic Conference of Plenipotentiarieson the Establishment of an International Criminal Court, July 17, 1998, Annex II, UN Doc. A/CONF. 183/9 (1998), 37 ILM 999 (1998) [hereinafter 1998 Rome Statute], Art. 17. One exception to this requirement is if the Security Council directly authorizes ICC jurisdiction in a particular situation. Id. For further background on the ICC, see generally, e.g., Leila, Nadya Sadat, The International Criminal Court and the Transformation of International Law: Justice for the New Millennium (2002)Google Scholar.

88 Rome Statute, supra note 87, Art. 17.

89 See supra note 36 and accompanying text.

90 Moreover, the hybrid court was not established within the domestic court system.